Recent Public Records Legislation and Related Judicial Review: The Impact upon Florida School Districts 34th Annual Spring Training Program May 15, 2014 Prepared by Leonard J. Dietzen, III © 2014 Rumberger, Kirk & Caldwell, P.A.

Access to public records Guaranteed by: Article 1, Section24, Florida Constitution Chapter 119, Florida Statutes (2013) © 2014 Rumberger, Kirk & Caldwell, P.A.

Article 1, Section 24, Florida Constitution “… every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, employee…” © 2014 Rumberger, Kirk & Caldwell, P.A.

Defining public records Films Papers Letters Maps Books Tapes © 2014 Rumberger, Kirk & Caldwell, P.A. Photographs Sound recordings Data processing software Documents Any material circulated for review, comment, or information

= public record? messages sent in the course of business are public records, even if they are sent from a smart phone or a personal laptop. Content of the message is key. © 2014 Rumberger, Kirk & Caldwell, P.A.

= public record? Personal s may subject public employees to disciplinary action. Personal messages do not fall within the definition of public records. State of Florida v. City of Clearwater, 863 So. 2d 149 Fla © 2014 Rumberger, Kirk & Caldwell, P.A.

Text messages = public record? Text messages sent in the course of business are public records. © 2014 Rumberger, Kirk & Caldwell, P.A.

Text messages No formal AG opinion or case law on whether text messages are public record. AG’s policy is that text messages are to be retained as public records. March 2010 AG letter to Sec. of State established retention schedule for texts which reads like that for s.

© 2014 Rumberger, Kirk & Caldwell, P.A. Facebook “To the extent that the council member is publicly posting comments relating to city business, this office cannot conclude that such postings are not made in connection with the transaction of official business. Accordingly, I am of the opinion that such postings would be subject to the provisions of Chapter 119, Florida Statutes.” AGO

Bottom line Need formal policy: You cannot expect any degree of privacy when using agency equipment, whether computers, laptops, cell phones, Blackberries, iPhones, telephones or personal digital assistants (PDA). © 2014 Rumberger, Kirk & Caldwell, P.A.

Challenges for staff Who determines whether a text or an message is personal or public record? How will text and messages be stored? How will text and messages be organized for response to public records request? Who determines whether an exemption applies? © 2014 Rumberger, Kirk & Caldwell, P.A.

Requests in Any Form Records may be requested in person, over the phone or in writing. The person making the request is not required to give contact information or a reason for his/her request. © 2014 Rumberger, Kirk & Caldwell, P.A.

Requests Can Be Anonymous Limited exception – Public school employees’ personnel files Section (f) Florida Statutes which states “The custodian of the record shall maintain a record in the file of those persons reviewing the file each time it is reviewed.” © 2014 Rumberger, Kirk & Caldwell, P.A.

Agency Fees or Charges Inspection is free unless otherwise provided by law. Agencies may charge for copies of records or for extensive use of records. The charge is 15 cents per one-sided copy plus 5 cents for each two sided copy (4)(1)1 Fla. Stat. (2013) © 2014 Rumberger, Kirk & Caldwell, P.A.

Photographs Allowed A requestor may photograph records instead of copying them. There is no fee for photographing records though the custodian may charge for supervising the requestor while the records are photographed if extensive time is needed. © 2014 Rumberger, Kirk & Caldwell, P.A.

Criminal Penalties Violation of public records law is a crime. First degree misdemeanor Up to one year imprisonment Up to $1,000 fine Subject to suspension or removal from office Impeachment © 2014 Rumberger, Kirk & Caldwell, P.A.

Results of failure to produce Failure to produce the requested information in a timely manner may create liability for your agency and lead to expensive civil litigation. (Rush v. High Springs – 8 day delay in producing one page polygraph test result report) Attorneys’ fees and costs in these cases are awarded to the person denied reasonable access. © 2014 Rumberger, Kirk & Caldwell, P.A.

New laws effective Some school contractors must comply with public records laws , Fla. Stat. (2013) Schools must protect personally identifiable information (PII) for applicants for and recipients of free and reduced school lunches , Fla. Stat. (2013) Investigations of complaints of misconduct filed against agency employees are exempt from public records laws until investigation is concluded , Fla. Stat. (2013) © 2014 Rumberger, Kirk & Caldwell, P.A.

, Fla. Stat. (2013) In brief, the act requires that each public agency contract for services must include a provision that requires the “contractor” to comply with public records laws. The act defines a “contractor” as an individual, partnership, corporation, or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency as provided under F.S (2). © 2014 Rumberger, Kirk & Caldwell, P.A.

, Fla. Stat. (2013) To comply with the public records laws, the contractor is required to: (1) keep and maintain public records that would be required by the public agency; (2) provide the public with access to public records on the same terms and conditions that the public agency would provide them, and at a cost allowed by law; (3) ensure that public records that are exempt or confidential are not disclosed, except as authorized by law; and © 2014 Rumberger, Kirk & Caldwell, P.A.

, Fla. Stat. (2013) (4) meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If a contractor does not comply with a public records request, the public agency shall enforce the contract provisions in accordance with the contract. F.S (3). © 2014 Rumberger, Kirk & Caldwell, P.A.

, Fla. Stat. (2013) In brief, the act makes a complaint of misconduct filed with an agency against an agency employee exempt from disclosure until either: 1. the investigation ceases to be active; or 2. the agency provides written notice to the employee who is the subject of the complaint, either personally or by mail, that the agency has either a. concluded the investigation with a finding not to proceed with disciplinary action or file charges; or b. concluded the investigation with a finding to proceed with disciplinary action or file charges. © 2014 Rumberger, Kirk & Caldwell, P.A.

Recent Case, Attorney General Opinions and Proposed Bills Morris Publishing Group, LLC v. Florida Department of Education and the Florida Education Association, No. 1D , 2103 WL (Fla. 1 st DCA, Nov. 12, 2013) AGO AGO AGO SB 1648 © 2014 Rumberger, Kirk & Caldwell, P.A.

In October 2012, a newspaper owned by Morris Publishing made a public records request to DOE for the VAM records (i.e., the “value added” measurement which measures the amount by which an actual FCAT score is greater than the predicted score) for Florida teachers during the previous two years. The request was later amended to seek three years of VAM records. - Morris Publishing Group, LLC v. Florida Department of Education and the Florida Education Association, No. 1D , 2013 WL (Fla. 1 st DCA, Nov. 12, 2013) © 2014 Rumberger, Kirk & Caldwell, P.A. Morris Publishing v. DOE & FEA

DOE declined to produce the VAM records, citing Section (3)(1)2, Florida Statutes (2012), which exempts teacher evaluations from public records disclosure until “the end of the school year immediately following the school year in which the evaluation was made.” - Morris Publishing Group, LLC v. Florida Department of Education and the Florida Education Association, No. 1D , 2013 WL (Fla. 1 st DCA, Nov. 12, 2013) © 2014 Rumberger, Kirk & Caldwell, P.A.

Morris Publishing v. DOE & FEA Morris Publishing therefore filed suit in the circuit court for Leon County seeking production of the VAM records. The Florida Education Association (FEA) intervened on behalf of DOE. - Morris Publishing Group, LLC v. Florida Department of Education and the Florida Education Association, No. 1D , 2013 WL (Fla. 1 st DCA, Nov. 12, 2013) © 2014 Rumberger, Kirk & Caldwell, P.A.

Morris Publishing v. DOE & FEA The trial court ultimately denied Morris Publishing’s requested relief, holding that under the plain meaning of Section (3)(a)2, a VAM score is exempt because it is a teacher evaluation. Morris Publishing appealed. - Morris Publishing Group, LLC v. Florida Department of Education and the Florida Education Association, No. 1D , 2013 WL (Fla. 1 st DCA, Nov. 12, 2013) © 2014 Rumberger, Kirk & Caldwell, P.A.

Morris Publishing v. DOE & FEA On appeal, the 1 st DCA reversed the trial court and held: “While section (3)(a)2 provides that the evaluation of a public school teacher is not subject to disclosure under the public records law, it does not follow that any information or data used to prepare the evaluation is likewise exempt from disclosure. To so hold would be to expand an exclusion to the public records act beyond what was plainly intended by the Legislature, which a court may not do.” - Morris Publishing Group, LLC v. Florida Department of Education and the Florida Education Association, No. 1D , 2013 WL (Fla. 1 st DCA, Nov. 12, 2013) © 2014 Rumberger, Kirk & Caldwell, P.A.

AGO Topic: Government in the Sunshine Law – Public Meetings – ability to meet in closed meeting when party to mandatory arbitration. s , Fla. Stat. Question: Does the exemption provided in section (8), Florida Statutes, allow a closed attorney- client session between the city commission and its attorney to discuss settlement negotiations or strategy related to expenditures for pending mandatory and binding arbitration to which the city is presently a party? © 2014 Rumberger, Kirk & Caldwell, P.A.

AGO Answer: While the city may conduct a closed attorney- client session to discuss settlement negotiations or strategy relating to litigation expenditures when the city is a party to pending litigation before a court or an administrative agency, this office cannot say that mandatory and binding arbitration, absent an identifiable lawsuit, constitutes litigation for purposes of the exemption in section (8), Florida Statutes. © 2014 Rumberger, Kirk & Caldwell, P.A.

AGO Topic: Government in the Sunshine Law – Settlement – “Conclusion of Litigation” – Derivative Claims – whether exemption for litigation strategy meetings would extend to “derivative claims’ brought in subsequent action. S (8), Fla. Stat. Question: Does the provision of section (8)(3), Florida Statues, requiring the disclosure of transcripts of private meetings between a state entity and its attorney upon the conclusion of litigation apply when the initial litigation has concluded, but a close relative of the initial plaintiff seeks information to assist in a subsequent derivative claim? © 2014 Rumberger, Kirk & Caldwell, P.A.

AGO Answer: Section (8)(3), Florida Statutes, provides that transcripts of closed meetings to discuss settlement negotiations or strategy sessions related to litigation expenditures “shall be made part of the public record upon conclusion of the litigation.” The statute does not recognize a continuation of the exemption for “derivative claims” made in separate, subsequent litigation. © 2014 Rumberger, Kirk & Caldwell, P.A.

AGO Topic: Drug Testing – Workers’ Compensation – Municipalities – Public Records – confidentiality of drug-test results from program established under Ch. 440, Fla. Stat. ss and , Fla. Stat. Question: Are drug test results obtained under a drug-free workplace program implemented pursuant to Chapter 440, Florida Statutes, subject to disclosure under the Public Records Law? Answer: Drug test results obtained pursuant to a drug-testing program implemented pursuant to Chapter 440, Florida Statutes, are confidential and exempt from section (1) and section 24(a), Article I of the Florida Constitution. © 2014 Rumberger, Kirk & Caldwell, P.A.

SB Summary This bill substantially amends the public records and public meetings laws. This bill clarifies how the public may access records and how agencies should respond. This bill also outlines what an agency may charge as a service fee and incorporates the cost of litigating attorney fees if an agency loses an enforcement action. This bill places additional requirements on organizations that accept membership fees from the government and on businesses contracted with the government. © 2014 Rumberger, Kirk & Caldwell, P.A.

SB 1648 – Bill text The bill: Provides that public records request can be made an any agency office that is open to receive the public and provide government services. Requires organizations that accept public funds for membership dues or fees keep records related to those funds and members. Organizations will also be required to make records it gives its members or the public available for inspection and copying. © 2014 Rumberger, Kirk & Caldwell, P.A.

SB 1648 – Bill text The bill: Provides definitions for “confidential and exempt” and “exempt” records consistent with court interpretations. Provides that public records request do not need to be made in writing unless there is a specific statutory requirement present. If a public records request must be made in writing the records custodian must provide the statutory citation to the requestor. © 2014 Rumberger, Kirk & Caldwell, P.A.

SB 1648 – Bill text The bill: Provides that the fee charged for satisfying a voluminous or complicated public records request is limited to the cost of the lowest paid personnel capable of performing the work, and excludes employer-paid benefits. Requires a private contractor acting on behalf of a public agency to inform the agency before denying a public records request and to notify the agency if the private contractor is sued for failing to provide public records. © 2014 Rumberger, Kirk & Caldwell, P.A.

SB 1648 – Bill text The bill: Requires agencies to train their employees regarding Florida’s public records laws. Specifies that the attorney’s fees to which a prevailing public records plaintiff is entitled includes the fees incurred in litigating entitlement to and amount of attorney fees. Courts will be required to award the costs of enforcement, including attorney’s fees, on each count on which the plaintiff prevailed. © 2014 Rumberger, Kirk & Caldwell, P.A.

Disclaimer The information provided during this presentation is not intended for legal advice. The presentation, and any handouts which may accompany it, provide general information on this topic and answers to common questions about this issue. Please consult an attorney to assure that this information, and your interpretation of it, is appropriate to your particular situation. © 2014 Rumberger, Kirk & Caldwell, P.A.

Thank you! Leonard J. Dietzen, Esquire Rumberger, Kirk & Caldwell, P.A. P.O. Box Tallahassee, FL (850) © 2014 Rumberger, Kirk & Caldwell, P.A.